Town of Winnsboro v. Barnard & Burk, Inc.

• Decision Date: 12 February 1974
• Docket Number: No. 12147,12147
• Citation: 294 So.2d 867
• Court: Court of Appeal of Louisiana — District of US
• Parties: TOWN OF WINNSBORO, Plaintiff-Appellee, v. BARNARD & BURK, INC., et al., Defendants-Appellants.

Page 867

294 So.2d 867

TOWN OF WINNSBORO, Plaintiff-Appellee, v. BARNARD & BURK, INC., et al., Defendants-Appellants.

No. 12147.

Court of Appeal of Louisiana, Second Circuit.

Feb. 12, 1974.

En Banc. Rehearing Denied March 19, 1974.

Writs Refused May 17, 1974.

Dale, Owen, Richardson, Taylor & Mathews by George Mathews, Baton Rouge, for Barnard & Burk, Inc.

Sanders, Miller, Downing & Kean by Robert A. Hawthorne, Jr., and Gordon Kean, Jr., Baton Rouge, for J. H. Jenkins Contractor, Inc. and The Travelers Indemnity Co.

Duplantier & DeMartini by Edward J. DeMartini, New Orleans, for Delta Testing & Inspection, Inc.

Wray & Robinson by W. P. Wray, Jr., Baton Rouge, for amicus curiae, The Associated General Contractors of America, Louisiana Highway, Heavy, Municipal and Utilities Branch.

Chaffe, McCall, Phillips, Toler & Sarpy by Jarrell E. Godfrey, Jr., and Peter A. Feringa, Jr., New Orleans, and E. Rudolph McIntyre, Winnsboro, for plaintiff-appellee.

Before BOLIN, HALL and WILLIAMS, JJ.

HALL, Judge.

This is an action by the Town of Winnsboro to recover damages arising out of alleged defects in a street system constructed in the Town in 1965 and 1966. Named defendants are (1) J. H. Jenkins Contractor, Inc., the general contractor; (2) The Travelers Indemnity Company, Jenkins' bonding company; (3) Barnard & Burk, Inc., an engineering firm; and (4) Delta Testing & Inspection, Inc., a testing laboratory. Jenkins, Barnard & Burk and Travelers named Delta as a third party defendant.

The district court rendered judgment in favor of plaintiff against all defendants in solido in the amount of $445,000, and against Jenkins and Travelers in the amount of $60,000 for attorney's fees. Jenkins, Travelers and Barnard & Burk appealed suspensively. Delta perfected a devolutive appeal. Plaintiff answered the appeals, praying that the award be increased to $475,000.

For the reasons hereinafter set forth, we amend the judgment to reduce the principal award to $175,000, and, as amended, affirm the judgment of the district court.

Factual Background

In 1964, the Town undertook negotiations with Barnard & Burk relative to resurfacing existing streets and construction of new streets in Winnsboro. Barnard & Burk had served as engineers on a previous project in which T. L. James as contractor in 1951, constructed the streets to be resurfaced. Ultimately, the Town contracted with Barnard & Burk to provide the engineering services, including preparation of plans and specifications and supervision of construction, for the proposed project. The Town contracted with Jenkins as general contractor for the project and with Travelers as surety for Jenkins. The Town also contracted with Delta to perform certain testing work.

The project consisted of the resurfacing of the streets originally constructed by T. L. James in 1951 and the construction of approximately 8.74 miles of new streets at a total contract price of approximately $550,000. This litigation relates entirely to the construction of the new streets. Of the total contract price, the cost attributable to the new streets was approximately $500,000.

The plans and specifications called for the new streets to have an asphalt surface over an eight inch soil cement base. Some of the streets were to have concrete curbs and gutters.

Work on the project commenced in the fall of 1965 and was substantially completed in June, 1966. Some base failures appeared during the course of construction and were repaired. In June, Barnard & Burk recommended acceptance and final payment, but the city refused because of certain defects. A 'punch list' of defects and needed work was prepared and in July Barnard & Burk again recommended conditional acceptance and final payment. An acceptance was executed in July, but the Town continued to withhold final payment and was making demands for correction of deficiencies as late as October, 1966. Finally, under threat of litigation, the Town made final payment to the contractor with the understanding that the items on the punch list would be taken care of by the contractor. Some further work was done by the contractor but the evidence is not clear as to whether all of the items on the list were repaired.

Additional defects became apparent thereafter and in April, 1968, the Town representatives contacted and met with representatives of the engineering firm, contractor and testing laboratory. The parties were unable to reach an agreement as to what was to be done about the claimed defects and this suit was filed in June, 1969.

Nature, Extent and Cause of the Alleged Defects

The deficiencies complained of by plaintiff fall primarily into two categories: (1) failures of the soil cement base, and (2) defects in the curb and gutter construction. Failure of the soil cement base means that the base is not structurally sound and is inadequate to support the surfacing and traffic load thereon. Manifestations of base failure are caving, or giving way, or deterioration of the streets resulting in cracks, indentations, potholes and the like. Manifestations of curb and gutter failures are misalignment and subsidence, resulting in inadequate drainage.

The parties to this litigation produced an array of expert witnesses. Their qualifications and testimony were reviewed and analyzed in detail by the trial judge in his thorough, well-written reasons for judgment. We are in substantial accord with the factual findings of the district court and, therefore, will not burden this opinion with a repetition of that court's detailed discussion of the evidence. We will, however, review the primary thrust of the evidence presented and the ultimate factual conclusions to be drawn therefrom.

Plaintiff's key witnesses were Glenn Gaker and Guy F. LeMieux. Baker is a mechanical engineer and registered land surveyor from Winnsboro, with limited experience with soil cement streets specifically, but with considerable experience in street and road construction generally. LeMieux is a civil engineer and an executive officer in a New Orleans engineering firm with substantial experience in soil cement street construction.

Baker undertook a detailed inspection of the newly constructed streets commencing in November, 1970, and continuing until the time of trial. He prepared an exhibit showing several hundred defects which he located and described on a street by street basis. His exhibit, supported by his testimony, gives his opinion as to the cause of each defect and the work required to remedy it. During the course of his investigation, Baker made or had made numerous visual, physical and chemical tests.

Baker found that the soil cement base was not more than three inches thick in most places, that there was no soil cement at all in some places, that in some places the soil cement never had adequate water mixed in and, therefore, never set up. He attributed most of the defects in the streets to improper or unsatisfactory soil cement base.

Baker found misalignment and subsidence of curbs and gutters, attributing these defects to improper backfill and to improper alignment at the time of construction.

Other defects noted by Baker were improper joints where work stopped and started from day to day, improper junction of one street with another, improper backfill and base over culverts, improper patching during construction, failures around manholes and valves, and inadequate drainage.

LeMieux made his first inspection of the streets in June 1968. He noted a number of failures in the base and/or subbase, manifested in potholes, depressions, longitudinal cracks, 'alligatoring' cracks, and failures next to the curbs and gutters. The failures increased each year thereafter.

LeMieux also made chemical and physical tests. He concluded that the soil cement base was improperly constructed, primarily due to a failure to achieve a homogeneous mixture of soil, cement and water. He noted that the specifications called for a single pass stabilizer machine, but that the contractor used a multiple pass machine with which it is more difficult to achieve the desired results.

Defendants' chief expert witnesses were Edward W. Evans, Dempsey White, Charles N. Higgins and Ray Burgess.

Evans, called by Jenkins, is a consulting engineer with a New Orleans firm, specializing in civil engineering, particularly roads, streets, highways, drainage and similar types of work. He has bachelor's and master's degrees in civil engineering, with twenty-five years experience in design, administration, constructing supervision and inspection of soil cement streets. Evans inspected every item on Baker's list and expressed an opinion on an item by item basis as to many of the claimed defects.

Higgins, witness for Delta, is a licensed civil engineer serving as Assistant Materials Engineer for the Louisiana Department of Highways. He has conisderable experience in and has done special studies related to soil cement roads and streets. Higgins reviewed each item on the Baker list and testified as to his opinion on many of the claimed defects.

White is Chief Construction and Maintenance Engineer with the Louisiana Department of Highways, with a degree in mechanical engineering. He made a detailed review and inspection of each item on Baker's list and expressed an opinion on each claimed defect through an exhibit filed in evidence in connection with his testimony.

Burgess is Director of the Department of Public Works for the City of Baton Rouge and formerly Director of the Louisiana Department of Highways. He is a registered mechanical engineer and registered civil engineer. Burgess did not make a detailed inspection, but made a general visual review of the streets in controversy.

The thrust of the testimony of defendants' experts was that many of the defects on Baker's list were not defects at all and did not require repairs, that most of the so-called defects existing at time of trial were normal in soil cement streets and...